Allowing Employers to Make Tangible Employment Decisions Based on an Employee’s Use of Tobacco

By Cameron Betterley, Albany Government Law Review

I. A Widespread Problem

            The devastating health effects of tobacco use are well documented and widely known. Tobacco use is the number one cause of preventable death in the United States,[1] resulting in 480,000 deaths annually, or approximately one of every five deaths each year.[2]  Twenty-five thousand of those deaths occur in the State of New York.[3]  Indeed, “more deaths are caused each year by tobacco use than by all deaths from [h]uman immunodeficiency virus (HIV), [i]llegal drug use, [a]lcohol use, [m]otor vehicle injuries, [f]irearm-related incidents.”[4]  The adverse health effects are not limited to smokers, as exposure to secondhand smoke causes approximately 42,000 deaths per year in the United States[5]—2,500 of those who die are New Yorkers.[6]  Moreover, while extraordinary progress has been made in the last fifty year—“reductions in smoking prevalence avoided an estimated 3 million deaths between 1964 and 2000”—efforts have been less successful with the poor and the less educated.[7]  In 2006, for example, 30% of the least educated were smokers, while only 9% of the most educated were.[8]

II. No Right to Smoke

            Federal law does not protect tobacco users or entitle them to equal protection in all aspects of employment, including hiring, firing, and promotions.  The Equal Employment Opportunity Commission, for example, does not recognize tobacco users as a protected class.[9]  However, twenty-nine states and the District of Columbia currently offer employment protections to tobacco users[10] through laws “that expressly prohibit employers from taking adverse employment actions on an employee’s off-duty legal conduct such as smoking[.]”[11]

            New York, which is among these states, actually goes further, prohibiting an employer from firing or from refusing to hire or employ an employee due to his or her legal use of any consumable products outside of work.  This article argues that New York law should be amended to allow employers in New York to fire, or to refuse to hire, employees or potential employees who smoke or otherwise consume tobacco.

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